OPINION: The proposed electoral amendments in Dominica, misinformation and fighting over nothing

by: - June 2, 2017

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By: ANTHONY W ASTAPHAN, SC
Dated the 31st May 2017

Power of the Parliament

1. The Constitution vested the exclusive power in the Parliament to make laws for election matters by sections 40(5) and 41 of the Constitution. It is also the exclusive authority of the Parliament to legislate on matters which it considers ought be illegal or offences, or which the public interest requires be clarified or enacted into law.

The purposes of the amendments

2. The purposes of the amendments in summary are to:

2.1. to clarify and codify the law in relation to bribery and treating;

2.2. to provide for confirmation of electors, and the reconstruction of the lists with persons who do not confirm or meet the requirements, are dead or overseas for more than 5 years immediately preceding confirmation are removed from the list; and

2.3. to provide for ID cards for the purposes of an election; and

The 5-year rule and right to vote

3. In Quinn Leandro v Dean Jonas the Court of Appeal ruled that a person duly registered has a constitutional right to vote.

4. In John Abraham v Kelvar Darroux the High court held a person who has resided overseas even for more than 5 years has a right to vote unless objected to and an objection has been successful.

5. In Parry v Brantley, the Court of Appeal held that no elector who is duly registered can be removed from the register without strict compliance with the statutory regime for hearings and due process.

6. The confirmation process proposed by the amendments will lead to the due process removal of persons in the Diaspora who have been away from Dominica consistently for 5 years prior to their application for confirmation.

The history of the offences of bribery and treating in election law

7. The law of bribery has never existed without the essential ingredient of the corrupt intention. More importantly, the common law and statutory offences of bribery and treating in Dominica have always required strict proof of a corrupt intention; i.e. an intention to corruptly induce a person to vote for a candidate which he would not otherwise vote for.

8. Section 55 of the House of Assembly (Elections) Act provides

“The following persons shall be deemed guilty of bribery within the meaning of this Act:

(a) every person who, directly or indirectly, by himself or by any other person on his behalf, gives, lends, or agrees to give or lend, or offers, promises, or promises to procure or to endeavour to procure any money or valuable consideration to or for any elector, or to or for any person on behalf of any elector, or to or for any other person in order to induce any elector to vote or refrain from voting, or corruptly does any such act as mentioned above on account of any elector having voted or refrained from voting at any election;

(b) every person who, directly or indirectly, by himself or by any other person on his behalf, gives or procures, or agrees to give or procure, or offers, promises, or promise to procure or to endeavour to procure, any office, place or employment to or for any elector, or to or for any person on behalf of any elector, or to or for any other person in order to induce such elector to vote or refrain from voting, or corruptly does any such act as mentioned above on account of any elector having voted or refrained from voting at any election;

(c) every person who, directly or indirectly, by himself or by any other person on his behalf, makes any such gift, loan, offer, promise, procurement, or agreement as mentioned above to or for any person, in order to induce such person to procure, or endeavour to procure, the return of any person as an elected member of the House of Assembly, or to vote of any elector at any election;

(d) every person who, upon or in consequence of any such gift, loan, offer, promise, procurement or agreement, procures or engages, promises or endeavours to procure the return of any person as an elected member of the House of Assembly or the vote of any elector at any election;

(e) every person who advances or pays, or causes to be paid any money to or to the use of any other person, with the intent that the money, or any part thereof, shall be expended in bribery at any election, or who knowingly pays or causes to be paid, any money to any person in discharge or repayment of any money wholly or in part expended in bribery at any such election;

(f) every elector who, before or during any election, directly or indirectly, by himself or by any other person on his behalf, receives, agrees, or contracts for any money, gift, loan or valuable consideration, office, place or employment for himself or for any other person, for voting or agreeing to vote, or for refraining or agreeing to refrain from voting at any such election;

(g) every person who, after any election, directly or indirectly, by himself or by any other person on his behalf, receives any money or valuable consideration on account of any person having voted or refrained from voting, or having induced any other person to vote or refrain from voting at any such election.”

Bribery
9. As shown in section 55 of the House of Assembly (Elections) Act above, the existence of a corrupt intent or motive to induce is the golden thread which transforms an otherwise legal act into the offence of bribery.

10. The law as to the provision of travelling expenses for a voter is summarised in Halsbury’s Laws of England 4th Edition, Volume 15, para. 770 at page 421:

“The unconditional payment, or promise of payment, to a voter of his travelling expenses is not bribery, but the payment or promise of payment to a voter of his travelling expenses on the condition, express or implied, that he would vote for a particular candidate is bribery.”

11. Section 57 B of the proposed amendments to the offence of bribery provides

“Transportation
For the avoidance of doubt the transportation of electors or the facilitation of the transportation of electors to or within Dominica for the purposes of an election does not constitute an offence unless the transportation od provided or facilitated with the intention to corruptly induce an elector to vote for a particular candidate or party for which the elector would not otherwise have vote.”

12. The section must be read in context and as a whole. It is manifestly wrong to focus only on the first part of Halsbury’s or the intended amendments. Once properly construed, the sameness and similarities between the law set out in Halsbury’s are clear. There are no substantive legal differences at all; transportation will constitute bribery if provided or facilitated with the required corrupt intent. The existing laws and proposed amendments therefore contain the same critical corrupt intention of inducement.

13. It should be noted that in December 2009 Sir Brian Alleyne, SDC was quoted on the Dominican.net as having said

“According to Sir Alleyne, “what would be illegal is bribery as defined in section 55 of the House of Assembly (Elections) Act Cap. 2:01. Valuable consideration is consideration that confers a pecuniarily measurable benefit on a person. Paying for an airline ticket to Dominica would fall within the definition. If the motive is to induce an elector to vote, that, to my mind, would amount to bribery under the section and would attract criminal sanctions of a hefty fine and imprisonment on both the briber and the bribe. The briber, if convicted, would also be disqualified from being registered as an elector, or voting, or being elected to parliament, and if elected, he would be disqualified from retaining his seat. The matter is very serious indeed. (Sections 55 and 61).”

14. Significantly, Sir Brian made it clear that the transportation of electors must be accompanied by the corrupt intention or motive, namely “the motive is to induce an elector to vote” in order to cross the threshold of the criminal offence of bribery. This clear exposition of the law in Halsbury’s and by Sir Brian notwithstanding, Reverend William Watty has by the stroke of his nakedly partisan pen in his opinion Corruption – No doubt ravaged the definition of the offence of bribery which has stood the test of some 100 years of more.

15. The intellectual tragedy of Reverend Watty’s opinion lies in complete ignorance of the law. Stripped naked, Reverend Watty’s recently crafted definition of bribery is committed by a person once he makes an offer to transport supporters or electors to Dominica or the polls regardless of the facts, motive or intent. On the other hand, if a request is made for transportation by an elector, there is no bribery, regardless of the facts, motive or intent.

16. Significantly, Watty went on to say that motive and intention are irrelevant. This is forensic nonsense, if not legal heresy, fabricated to make his fake point of corruption. Test the absurdity of Watty’s position by considering this; if he is right, and he is not, it means that politicians and political parties will commit an offence simply by offering transportation to supporters. It gets worse if you reflect over the years. Watty’s pronouncements would mean in substance and effect that parties have since 1967 been committing the criminal offence bribery simply and only by the provision of transportation of supporters or electors to the polls. If this is truly his position, and I doubt it, it means that throughout all this politicking and mobilization over the last decades the good Reverend kept his moral sanctity to himself, and said not a word, until now, in spite of the fact that candidates and parties had advertised free transportation publicly, on bull horns, and radio etc!

17. I will add this. It is a fact that in Dominica, and the free world, political parties mobilize and bring out the vote on election day in accordance with a cardinal rule and practice of essential democratic politics. This mobilization has never ever depended on a request by an elector or supporter, until this self-serving dispensation by Reverend Watty. Should we heed the good Reverend, and Lennox Linton, any provision of transportation, unless requested, will constitute a crime. This is absurd.

18. Back to the amendments. Notwithstanding the substantial similarities with Halsbury’s, the proposed amendments in fact go further than the existing definition of bribery because

18.1. Prior to the proposed amendments the High Court would have had no jurisdiction to entertain a claim of bribery allegedly occurring outside the territorial boundaries of Dominica. The High Court has no extra-territorial jurisdiction. The words “the transportation of electors or the facilitation of the transportation of electors to …. Dominica” suggests that the High Court may, after the amendments, be able to ascertain an extra-territorial allegation, if the allegation is alleged to have occurred in the Diaspora, and with the requisite intention;

18.2. The inducement required under the proposed amendments is extended to include inducing a person to vote for a party as well as a candidate. Under the existing law, the inducements can only be in relation to a particular candidate. this will now be extended to include a party.

19. The litigation on transportation and bribery in the OECS has been clear,

19.1. In St Kitts and Nevis, allegations of transportation and bribery including the alleged use of the US Mission to facilitate transportation to St Kitts were thrown out in the post 2004 election petitions by Justice Baptiste on the ground that on the pleadings, the allegation did not constitute bribery;

19.2. In Dominica, allegations of bribery were thrown out on by Justice Rawlins an application to strike in the post 2005 election petitions;

19.3. In Dominica, allegations of transportation and bribery were thrown out in the post 2009 election petitions by Justice Thomas. Justice Thomas held that the allegations constituted no more than “a fishing expedition”;

19.4. In Antigua and Barbuda, allegations of transportation and bribery were thrown out in the post 2009 election petitions by Justice Blenman. This is significant as the jet charter from Cuba was arranged by the Ambassador in Cuba, Bruce Goodwin, and Prime Minister Spencer. It was paid for by the State. After the election Goodwin bragged on radio that had he not brought the students to vote from Cuba, the UPP would have lost the 2009 election. Justice Blenman held that this did not constitute the offence of bribery;

19.5. In Canada, a Court held“To drive to the poll a voter who has already decided how he will vote, or to persuade him to come to the poll, cannot considered as equivalent to inducing such a voter to vote.”

20. It cannot be over-emphasized that the rulings mentioned above were delivered within the context of the existing laws. I.e, laws without the proposed amendments. In order words, the High Courts have ruled that the transportation of voters and especially supporters under the existing laws to a particular country to vote is not and never has been bribery unless done with a specific intention. This is now, as I write, the law of the land. Nothing has or will change with the amendments; a corrupt intention is required, and must still be pleaded and proved by any petitioner. This therefore must mean that this mantra of “legalizing bribery” is fake news, misinformation, and utter rubbish.

Treating
21. In Dominica Justice Errol Thomas in the John Abraham case (the 2009 election) struck out the allegation of treating. He said food, drinks (and I include entertainment) are every day events, and therefore could not constitute an offence of treating unless done with a corrupt intention.

22. What does the proposed amendment to the offence of treating actually say?

23. The proposed section 57 A provides that sections 55 and 56 shall not extend to any monies paid etc on account on any lawful expenses “incurred in good faith” at or on the calling of an election. The inclusion of “ in good faith” is important. It does not include a payment in bad faith which includes any possible corrupt intent. Section 57 A (2) concerns what is included in lawful expenses.

24. The important sub section of 57A (2) is (d), which concerns payments made in respect pf public entertainment. By stating “public entertainment” the Parliament is ensuring that only payments made in good faith for “public entertainment” are excluded, i.e. entertainment to which the public at large are invited even though the entertainment is sponsored or provided by a political party. In short, “public entertainment” was never and could not be a corrupt or illegal practice.

25. The United Workers Party are objecting to these amendments too. These objections are baseless. For a start, the United workers Party has mastered the craft of public entertainment with Etana in St Joseph, and Spice in the Kalinago territory in 2009. More recently, in 2014 KKK and WCK were the UWP’s bands of choice. The political leader Mr Linton was himself part of the entertain when he came on stage to show his most unbalanced dance moves. Now he says, when confronted on Q95, that what he did in 2014 was wrong, and he confessed to having committed a crime in 2014. His current position is that there must be no entertainment at all. This stunning reversal of mind will leave funerals with more music and singing than a political campaign; an idea which I am sure will bring great join to Reverend Watty! But the fact is that the amendments do not legalize what was previously considered the criminal offence of treating.

The alleged unfair advantage

26. An elected Member of Parliament, who is an Attorney at Law, criticized the amendments because he alleged it gives “an unfair advantage to the governing party.” This is disingenuous forgetfulness for the following among other reasons

i. The Act and amendments favour no one and no party

ii. In 2000 the UWP was in Government. They lost;

iii. In 2005 the Leader of the UWP secured some 3 to 6 million ECD for campaign funding. This assertion made multiple times has never been denied by Mer Edison C James. [ See for example https://www.dominicavibes.dm/readers-224442/];

iv. In 2009 the UWP’s campaign was managed by SCL whose 1.5 million USD was paid for by external forces;

v. In 2014/2015, there were no election petitions following the 2014 general election, absolutely no election petition or allegation of bribery. I should add that the misconceived complaints in the Magistrate’s Court make no allegation of bribery.

27. More importantly, electors in the Diaspora have the right to vote. As a result, political parties have courted them for years, until now. . Now that it appears that UWP and its Leader’s, ability to raise funding has sank, except to pay his legal bills and damages, the UWP and Mr Linton now believe that the practice of providing transportation to supporters to Dominica, and on polling day to the polling stations, is now a corrupting “evil”. This change of mind based on a party’s financial fortunes simply cannot be the litmus test of legality, constitutionality or free and fair elections. This tells me that what we have here with these proposed amendments is a fight over nothing fueled by partisanship and misinformation.

12 thoughts on “OPINION: The proposed electoral amendments in Dominica, misinformation and fighting over nothing”

“the party seeks out and canvas it’s known supporters and not those who support the opposition.Herein lies the treatment or bribery, because the high cost of the tickets implies loyalty and an exchange of favors.” It is this fact in law which dismisses the action as bribery. There is no intention or motive to corrupt the voter if as you identified that the voter will vote for you. The UWP is driven more towards identifying equity in the process but i must say they need to become more effective in raising the capital required to effectively fund their campaign and not try to reduce the efforts of the labour party to corruption because they want to use THEIR finance to bring in THEIR supporters to support THEIR candidates. Go and raise all you money and stop trying to fool people with your nonsense talk because as a party you are ineffective in generating the required capital to become successful in an election..

Jam,first try to keep your discussion civil and cut out the derogatory name calling.This doesn’t advance the quality or the substance of the discussion.So if people who are US or UK citizens and they are Dominican citizens but they are neither in Dominica nor the US or UK would you send them a ballot box to vote.This is what you are saying and this doesn’t happen at all, bacause it would be too expensive and would be exposed to fraud.Also note that Dominican law states that there is a period of time before the voting that you have to live in the constituency where you are registered to make your vote valid and legal.So bringing in persons the week of or a few days before polling so they can vote for you is to encourage the crime to be committed.It’s called the residency requirement.I will not call you derogatory names but suggest that you phrase your question better and also better educate yourself on the laws to do with elections in Dominica.Also Jam,if it were legal to do,the cost of a ballot box will be way less than bringing in persons to vote,but you will have to set up the necessary security parameters to ensure that the vote is fair and free from fear.Therefore there is a huge cost difference between bringing in persons to vote and sending ballot boxes for people to vote out of Dominica​.Also think of the logistics of having a certain minimum number of people to use the ballot box.The two issues are not similar at all.How can you send ballot boxes to the US or UK and not other countries where citizens reside.Keep in mind that when you spend hundreds of dollars to pay for tickets for someone to come vote for you, people you have canvased,this is like buying their vote in exchange for a plane ride to another country.This is bribery

Jonathan nice try; but you have deliberately evaded the central issue: facilitating party members and supporters by providing them with transportation to and from polling stations on Election Day has never been bribery in Dominica, period! Party activists- of all parties have been engaged in that practice in Dominica . Respond to that assertion

Well Amazed,I’m not surprised that you can’t see the difference is to the degree of assistance or put another way the distance of the assistance.To offer a supporter a ride of one mile or so is like giving someone a “vep”.We do that in Dominica all the time,to our neighbors and friends and don’t expect any quid pro quo from them in return.On the other hand who offers their neighbors a plane ride for over a thousand miles, costing thousands of dollars,and not expect something in return.As a matter of fact some Dominicans offer rides to their neighbors who belong to or support a different political party​ than their own.That’s the way it ought to be,to encourage Civic duties.Because of the cost(the value) of the plane ticket from another country,the party seeks out and canvas it’s known supporters and not those who support the opposition.Herein lies the treatment or bribery, because the high cost of the tickets implies loyalty and an exchange of favors. I scratch your back and you scratch mine because I just spent a lot of money on you.I hope you finally get it,Amazed, That’s why it’s not done in USA or European countries.It’s bribery.

This QC is a cancer to Dominicans, in living in peace and tranquility. By disguise, this fella is trying to be the voice of the people for Gov’t… who has mandated him to do so?

The people have asked for a simple request but the DLP gov’t refuses to listen. We the people are asking for a White Paper on the proposed electoral amendments in D/ca. We want govt’s authoritative report/guide on these changes, to inform us concisely about this complex issue and to present the DLP govt’s philosophy on the matter.

What this QC is trying to pass and disguise as an authoritative report/guide to the people is utter garbage… a real nonsense. Why… because it’s not gov’t proof and rather than educate it distorts, fails to help D/cans understand the issue, solve the problem or make a decision.

I am indeed horrified at the deafening disquiet of bro B Linton and T Johnson on the increase in activity albeit futile of GP FU IODINE.The now infamous UNFAIR ADVANTAGE theory implicitly speaks of failure for the SINKING & UNSTABLE HEADLESS main opposition when general elections is called .

I am indeed tired and did my utmost . The people of Dominica are freely distancing OURSELVES from the UWP and its stubbornly weak, intellectually arrogant , morally bankrupt , violent charged, unpatriotic,incompetent , ineffective and anti-poor leadership.

Many longs hours have been spent to privately appeal for a new approach to Dominica Politics . There is that commonsensical need to tone down the rhetoric and act as a viable alternative to Dr. Skerrit . No one is listening . They the over ambitious ones in the Uwp is absolutely obsessed and politically intoxicated with an insane desire for power change on two fronts i.e 1. Get rid of Linton as head 2. Get DLP out. This is a recipe for further disaster in a fiery deep blue sea.

My newly appointed political siamese shall begin to use the established brand name ROSE VALLEY. I hope her/him the best. I am a reluctant realitic Red CONVERT. Masking my language and style is up for consideration .

The Team Dominica responses to the issue of Treating & Bribery as are being advanced through the proposed amendments has made the main opposition a laughing pile of demented bricks .

King Fufu Iodine is in a different world. Maybe there is some deep rooted fear that Cristobal Colon may return or more charges of the luna battery might take place. 25 Cents pieces @ the school dancing on Polling Day is Satanically returning to sender. Power you behind? Anyways .

Linton’s focal on legal financial issues is seen as an opportunistic time to put the brakes on him. The secret REMOVE LINTON ROSEAU ACCORD in motion. However one of its co conspirators is playing a very treacherous hand. Our Party Rules state that if the leader loses too consecutive elections then he / she shall tender a letter of resignation to the national council. That member believes that a succinct non cooperation or partial involvement strategy ( not fully sincere ) can ensure that he doesn’t win the Prime Ministership. This approach also involves the non alienation of the Marigot Wesleyan Bawi Block and working closely with RN and at the same time establishing and clandestinely pushing an unholy alliance with RC ( A Lamb to the slaughter ).

The other face of this dangerous WE NEED A NEW BLUE LEADER PACT wants the job done now now now. Legislaturing postures through an ill-conceived Patriotic window is utter rubbish. When there is the processing of a dogma that WE CAN NEVER WIN SKERRO with mister then the division is truly deep. People say so much in Roseau Rum Shops , news reach Morne Daniel , Pottersville , Marigot, Dojo , Church and Chambers quickly . I need not speak about private social media , confidential – parrot undermining messages ( We have some audio for Linton and or Skerro ).
So the law is unambiguous on Bribing and Treating. We as practioners must always seek to enlighten the population . I understand the vagaries of politics but the UWP is going about this in an irresponsible way. Our mantra is election reform . These amendments speak with purposefulness to ALL of our / your request . Why is our leader being led down this Judasian course.

This piece by SC Astaphans ( am not yet a member of his fan club ) was a seminal expose on the Law. It was thorough , factual ,relevant and authoritative.

Skerrit is an extraordinary skilled and highly regarded popular leader . I / we have sent scud and nuclear weapons of every political description and source and all have backfired . The DLP is powerful and has delivered . I don’t see UWP defeating them because they are not reddy yet. Too many over ambitious folks who refuse to follow their leader.

Tony Ass-ta-phan,you are the one who told Skerritt about his legacy and tenure in office with regards to the electoral commission and electoral reform and voter ID a while back.He listened to you and you guys have been playing games with the Dominican electorate.Now you wrote the amendments for the latest attempt to highjack the electoral process and remain in power longer than Robert Mugabe.Irrespective of your legal and intellectual brilliance your​ effort received a good slapping down in that Skerritt had to put it on hold at the last sitting of parliament.With all your brilliance Tony and out of respect for the country why didn’t you advise Skerritt to engage the citizens and get their feedback and feelings on this proposed amendments.No,you are aiding and abetting the dictator to do whatever he and you want.This is not much ado about nothing, it’s that the Patriots of Dominica don’t want your evil and conniving scheme to highjack the Democracy in Dominica.You lost Tony Ass-ta-phan and I know that you and Skerritt will run to the USA when things get hot if you bring that back,but hear us,we don’t want it.

Jonathan, why don’t you address the facts as stated by the Senior Counsel? You simply regurgitate the rubbish thrown out by novice Lennox Linton! Can you name ONE country where political parties do not mobilize their party workers on election day in an effort to maximize the turnout of supporters at the polls so as to improve their chances of success?
I am sure that you are aware that in the US and UK among many other countries party activists of all political parties make it their business to facilitate their party supporters by transporting them to their respective polling stations! Here in Dominica that practice has been an integral feature of all elections! Who would be bold enough to deny that undeniable FACT?
You guys are a bunch of shameless hypocrites!

I’ve never heard of any political parties anywhere in the world except for Dominica Labour Party bringing in supporters by plane load from another country.In the USA this doesn’t happen neither in Europe.The faux honourable doctor is the first and only one wanting to legitimize that behavior .Why must Dominica seek to be first in crooked and shady activity.